Pena v. State

PENA, Appellant, Jose Texas.

The STATE

No. PD-0966-05. Appeals of Texas. of Criminal

Court 26, 2006.

April Houston, Ramsey, Appellant.

Scott Horn, L. First Asst. State’s Jeffrey Van Austin, Paul, Atty., Atty., Matthew for State. P.J.,

KELLER, opinion delivered JOHNSON, PRICE, in which the Court COCHRAN, JJ., HOLCOMB, joined. appel- reversed that the determining after lant’s conviction protec- grants broader Texas Constitution Constitution tion than the United States destroyed. This is lost or when evidence appeal nor raised on issue was neither hold parties. We briefed Appeals failing of in give erred in the federal tieulated cases. The State’s parties the opportunity to brief the brief likewise discussed stan the federal argued issue. dard and that appellant had not requisite made showing. “bad faith” I. BACKGROUND own, On its the Court of decid- charged possession was with ed to address whether the Texas Constitu- marijuana. requested of Before he of provision grants tion’s Due Course Law independent analysis of the evidence. greater protection defendants than the marijua- was discovered that the alleged United States Constitution.4 The court and, destroyed except na had been for a explained that the Texas must Constitution all report, documenting lab records be interpreted independently of the United testing Appel- evidence were lost. conducting States Constitution.5 In objected, lant contending that admission of independent interpretation, the appellate report physical the lab after the evidence court of language determined destroyed had pro- been would violate due Due Course Law is different under the cess Fourteenth Amendment “arguably significantly from and broader States and United Constitution due language than” in found the counter- course law under the Constitu- Texas part provision the United States Consti- overruled, objections tion.1 His were court tution.6 The also found that some admitted, report appellant lab and rejected other states had in Youngblood ultimately convicted. constitutions, their own interpreting standard, “bad faith” is an unworkable appeal, appellant On contended that the questions that serious fun- concerning the “erred in admitting testimony damental fairness of the trial occur can marijuana concerning alleged test results faith, even the absence bad and when this material the origi evidence and findings of negligence recent in the han- concerning nal file this evidence had been dling of evidence crime labs across destroyed or lost to trial and without country Texas—“demand —and independent testing.” support of his analyzing courts caution when lost exercise claim, appellant upon relied federal case- destroyed or evidence.”7 addressing implica law destroying potentially exculpatory tions of held that Texas specifically requires v. Tromb Constitution the State to preserve evidence— California and etta2 Arizona v. He Youngblood3 apparent evidence that exculpatory did not claim that the comparable Texas Constitution value is not when evidence protection conferred broader that ar- reasonably available to the defendant.8 Const., ("nor any 1. U.S. Amend. XIV shall 3. 488 U.S. 109 S.Ct. 102 L.Ed.2d (1988). life, deprive any person liberty or law”); property without due Tex. Pena v. 278-283 Const., I, ("No § Art. this State citizen of 2005). (Tex.App.-Waco life, deprived property, liberty, be shall immunities, privileges any or or manner 5. Id. at 278. disfranchised, except by the due course of the 6. Id. land”). law of 7. Id. at 278-281. U.S. 81 L.Ed.2d S.Ct. (1984). 8.Id. at 281. protec- level of or a difference ty is lost de- exculpatory When evidence case must be dis- United stroyed, tion between Texas potentially that is de- proceeds missed.9 When evidence States Constitutions balancing destroyed, test useful is lost expansiveness termine the govern should the State’s case in the Texas of law course court would should be dismissed.10 The Constitution. negligence of in- degree balance “the told doing? are We’ve been What we significance of against “the the

volved” convictions theories not to reverse destroyed light of evidence considered in the court appeal raised on or not reliability of probative the value and sec- And, do Yet continue to so. below. we available,” ondary evidence that remains party argue fails to a a distinction where the sufficiency and “the of other evidence Texas States between the and United to support used at trial the conviction.”11 Constitutions, Ap- Court of Criminal the conducting balancing After this test in the ar- peals routinely to make the declines case, present Appeals the Court of con- party in that gument the situation. appellant had denied due cluded that been we.13 So should law Constitu- course of under Texas petition for discretion- The State filed tion.12 ary ground, In its first the State review. dissented, complain- Gray Chief Justice by Appeals “Did of err asks: the Court ing, among things, other appellant did on a reversing trial court’s decision in his Texas argue brief Con- theory either to the legal presented provided greater protection: stitution by or of Appeals trial court to the Court Pena Although appeal claims that he party?” Under this complaining denied due and due course complained, part, that ground, the State by provide of law State’s failure to appellant argument “no the Court made during material evidence before and tri- provisions of that the relevant al, argument does not or present any he con- the Texas should be Constitution authority protection as to the they provided a differently, or that strued protec- Texas or Constitution how protection to the defen- greater level of way in any differs that offered dant, States Con- than those of United Only the United States Constitution. argument his entire Instead stitution. Texas are Pena in three cases cited authority.”14 upon based [was] his brief and none the due discuss complained ap- further The State fact, of law Pena provision. course State pellate deprived court’s action specifically argues his falls the issue: opportunity address parameters Youngblood, within the of Appeals’[s] a result of federal due Without As standard. deciding pre- case on an issue not argument or this any briefing, to the trial court or to upon possibili- sented either takes itself raise C.J., (ci- (Gray, dissenting) 13. at 285-286 9. Id. Id. omitted). tations 10. Id. contends that error 14. The State also to claim broad- appellant's failure forfeited 11. at 282. Id. at tri- protection the Texas Constitution er this contention We decline to address al. Id. at time. appeals, part court of did not have of respect State restraint exercised out or opportunity departments gov- to address whether the for other branches Texas ernment: provides greater Constitution

level protection to the defendant than on in this court called [W]hen Constitution, United States of the administration of the course law and, does, if it whether the com- Congress, an act to consider whether plied requirements with the additional any department gov- other ernment, the Texas Constitution. is within the au- thority department, a of that due re- II. ANALYSIS for a spect co-ordinate branch of the held, have previously government We requires that we shall de- today, reaffirm that appellate courts are that it powers cide has transcended its “unassigned free to review plain error” —a when that is so we cannot claim in preserved be In duty. that was avoid the such it is mani- cases low but was not on appeal.15 festly judicial raised the dictate of wisdom review, however, conducting such a no than propriety to decide more is nec- question essary becomes certain circum in whether to the case hand.18 obligate assign stances a court to such principle The is not limited briefing par error ordering from the courts, widely but in recognized is state recognize many, ties. if not We as fact Supreme courts well—a Court most, of error types of that would flowing observed a case into the federal prompt sponte appellate sua attention court, system from this where we had assigned need not be because the error principle: adhered involved constitutes an of obvious violation ground discharge The for the of the established rules. is Novel constitutional case, petitioner given by as sues are a different matter. below, was because of the [federal]

The United States has of Supreme opinion Court that court that the anti-trust recognized desirability of of avoiding the law the State of Texas violated the

adjudication States, of constitutional issues when Constitution of the United at all “If possible: question there is one doctrine void. The of was therefore deeply any validity more act rooted than other in the of that of course exists adjudication, it of constitutional is the case be the state court or not ought pass questions hearing we transferred to Federal constitutionality ... adjudica- unless such of the writ of virtue habeas court, duty This maxim in- corpus. unavoidable.”16 is the of the state practice cludes the Court’s much it is that of the Federal as as courts, question validity “to formulate a rule of law constitutional when the necessarily broader is required precise of a state statute is involved applied.”17 being alleged any pro- facts to which is to be This as violation 869, (Tex. (quoting 15. 870 Id. Alabama Federation Rezac 461, Crim.App.1990). McAdory, U.S. 65 S.Ct. Labor 325 (1945)). 89 L.Ed. 1725 Jones, 681, 690, 16. Clinton v. 520 U.S. 117 (1997)(quoting S.Ct. L.Ed.2d Cases, 82, 96, Mark 100 U.S. Trade Spector McLaughlin, U.S. Motor Service v. (1879). L.Ed. 105, 65 S.Ct. L.Ed. Clinton). (1944))(ellipsis in di- one of Constitution, is a novel to issue the Federal vision to overturn the threatens law mension question, and to hold the decide department of acts another branch But if it violate that instrument. void spe- exercise court should government, the to decide court is bound the state the matter. deliberating cial there care question when the constitutional that, recognized The Supreme reversing con- grounds other are context, the adver- in the law, even pain hav- upon viction under the safeguards crucial system provides ground furnish a sarial its omission ing decision-making: correct help ensure interference. Federal vigorous importance paramount nature follows representation justice. system of our adversarial stated is that the The first circumstance the well- premised on system This Appeals did not de- Court of Criminal that truth —as well principle tested cide, opportunity, it had when by powerful best discovered fairness —is constitutionality question question. on both sides of statements question. act in advocacy matter of common occurrence— need for forceful indeed, undeviating legal the abrupt it is the rule an halt as almost come to courts, ap- Federal— from the trial to proceeding of the both state and moves prose- the questions stage. stages un- Both pellate not to decide constitutional cution, involving necessity although perhaps til the for such decision arises skills, require court. This careful advo- unique legal in the record before the practice rights from the that are not for- cacy court has followed to ensure Government, legal and fac- gone and we and that substantial foundation inadvertently just upon arguments can no reason for criticism are not see tual refusing passed the action the state court over.20 the question to decide the constitu- appellate an suggest doWe act, when, tionality of the same every time it briefing must order time, it held in that there was substance point own a error to raise on its decides upon no evidence which to sustain the parties. As we indicat- not briefed in- upon conviction of the defendant earlier, rules—constitutional ed some it, dictment then before and that there- established already firmly otherwise —are judgment should be reversed.19 fore having already litigation, through prior course, through the fires of adversarial passed an addressing Of expand the And that do not originally testing. be rules was not briefed “neces constitutions or state necessar reach of sary” because the case’s outcome Legislature; al- can overturned ily resolution. be depends upon issue’s regarding Nevertheless, mistakes deciding though cost principle remedy a high, of rules types those questions constitutional when novel expands a rule But novel courts should exists. necessary also informs how provision can reach of go deciding those issues. When about Ohio, Grice, 291-292, U.S. Penson 169 U.S. Baker 84— (1988). (1898). S.Ct. L.Ed.2d S.Ct. L.Ed. hamstring Legislature Here, well as frus- the Court of Appeals decided on trate trial prosecutors courts and expand who its own re- reach the Texas lied upon rule that previously in Constitution without first requesting brief- effect. ing from parties. We hold that parties failure to an afford the opportunity types Different treatment of these to brief the issue was error. Ohio, where, rules can seen in be inas judgment We vacate the of the Court of Texas, “nothing prevents a court of ap Appeals and remand the to that peals passing upon error which for proceedings consistent with this opin- was neither briefed nor pointed out ion. party.”21 response to an intermediate appellate court’s sua sponte decision to WOMACK, J., concurring filed a declare a forfeiture statute unconstitution opinion. al, the Ohio Court cautioned that MEYERS, J., a dissenting opinion. filed “out of parties, fairness a court of appeals which contemplates decision J., HERVEY, filed a dissenting opinion upon an issue not briefed before it should KEASLER, J., which joined. ... give parties notice of its intention WOMACK, J., concurring filed a and an opportunity to brief the issue.”22 opinion. In rebuking the court of appeals, Ohio’s agree I principle Because with the high court further remarked “there give parties courts should was no such opportunity notice or of, brief, opportunity and an is briefing given parties by the court party sues that no on appeal,* has raised appeals. The first notice that constitu join judgment the the Court. tional being issues were considered was given when the court of appeals’^] deci I agree principle also with the sion was hand, released.”23 On other the courts should avoid the decision consti- in a later case when a party complained tutional issues that necessary are not of appeals court improperly had But, the resolution cases. I because do raised on applicability its own the agree with the discussion Court’s limitations, statute of Supreme the Ohio relationship the principle to the disagreed, Court stating prior (ante that its deci II), former I principle at Part do not sion was distinguishable because “the issue join opinion the of the Court. by decided court appeals the did not J., MEYERS, dissenting opinion. filed a

involve constitutionality the of a statute.”24 course, Of an even when court ago, Three weeks this Court decided not obligated PD-0531-05, to order on an briefing issue Villescas v. No. 2005 own, it has 327022, decided raise on it WL 2006 Tex.Crim.App. LEXIS so in case, do its discretion. (Tex.Crim.App.2006). 682 In that we al., Burt, 544, Dodge 564, 21. State et 24.Browning v.1981 Ram Van 36 Ohio v. St.3d Ohio 168, 993, (1988). St.3d (1993)(distinguishing N.E.2d 613 N.E.2d ), Dodge Ram Van cert. v.l 981 denied sub nom., Browning, St. Med. Ctr. v. Elizabeth Id. U.S. S.Ct. 127 L.Ed.2d 375 (1994). Id. The Ohio Court also found * appeals S.W.3d —, —, addressing the court of erred See Montanez — (Tex. PD-894-04, preserved the issue because it had not Cr.App., been 2006 WL 1083917 objection (Womack, J., today) dissenting). at trial. Id. at 526-527. decided Texas Consti- the granted petition for discretion- States Constitution Thus, issue of a violation of tution. ary review determine whether rights under Due Course Appellant’s notice of its intention to enhance State’s preserved was raised and was time- Law primary defendant’s offense Furthermore, the Tenth Court of However, at trial. addressing ly. instead the relation- timeliness, Appeals has now addressed the Court undertook a issue of ship respective analysis, deciding that between federal due the federal and state constitu- rights had clauses of appellant’s constitutional case, of this resolv- purposes notice of tions for been violated Due of Law ing that the Texas Course enhancement six before trial.1 provision provides greater protection with that, I blinking it ironic without find that has regard to the loss of “evidence today eye, majority reprimands Pena v. apparent exculpatory value.” ruling Tenth (Tex.App.-Waco question not briefed 2005). properly As this is now be- it very action took parties when that is us, prece- fore and no statute or caselaw case, In instant resolving Villescas. case back to requires dent us to send the conten- failing erred in to allow to parties brief this particular issue. ON PETITION FOR STATE’S DISCRE- THE TIONARY REVIEW FROM trial, argued At counsel in his defense OF EL EIGHTH COURT APPEALS suppress motion to that the admission of PASO COUNTY testimony the test and the sur- results rounding majority them his due I has some pro- would violate believe guaranteed by ground petition cess in the rights both the United what misstated the context, provision spe- I state As a matter of have attached as into this concurring opinion provided by copy right, “A” a its Exhibit cific broader prepared counterpart which I but never issued Villes- in the United States Con- clause, gone that had cas. stitution’s years.”) completely for over 150 unnoticed Hervey Presiding Judge cites Judge even Judge Hervey up appears has made v. State McCormick’s concurrence in Jimenez that the Due Course of Law Clause her mind position. 32 S.W.3d support for her great- in the Texas Constitution does not offer (due process clause in federal constitu- protection er than the Due Process Clause of of law in state Dissenting course the United States Constitution. tion ("The Op., thing). same Appeals mean the at 146 Tenth Court of read constitution 12.42(a)(3) for discretionary incorrectly review and of the Texas Penal Code based Appellant’s prior felony interpreted the law conviction. De- surrounding the issue objected counsel fense twice to the State’s Relying raised. United States Upon objec- enhancement notice. first his Oyler Court case Boles3 selection, prior jury tion to trial majority concludes that en argument deferred on the until timely hancement notice was because it parties punishment phase reached the process requirements satisfied federal due Upon objection the trial. his second at the by alleging the enhancement before the beginning of punishment hearing, punishment phase of trial. Not trial court ruling withheld and entered a majority Oyler, overstate the reach of plea true to the allega- enhancement it applies it to the dissimilar circumstances on Appellant’s behalf. During the drawing Villescas an incon- State4 punishment phase, Appellant was confused gruent Furthermore, analogy. in reaching process by about which his finger- decision, the Court cites the fact prints judgments, were to compared prior Appellant ultimately received continu trial and the court recessed the case until ance as evidence that the State’s notice of to following expla- allow time for week its intention to primary enhance the of nation. When the court resumed the timely. Lastly, fense proceeding, explained defense counsel involving holds that all claims the timeli Appellant fingerprint- now understood the notice, ness of the State’s enhancement comparison procedure. Appellant main- alleging a constitutional violation plea tained his “not true” the en- not, subject should be to constitutional paragraph, stipulated hancement but conducting analy standards when a harm convictions, including prior sis. also would reverse the Court of felony alleged conviction for enhancement. Appeals, but for different reasons. The trial found the enhancement al-

legation Appel- to be true and sentenced eighteen years’ imprisonment, lant BACKGROUND range punishment sentence within the Appeals Trial Court and Court of second-degree felony.5 for a was charged indictment Eighth Court of One issue before with attempted days sexual assault. Six was whether the trial Villescas com- nine before the pun- allowing court erred in an enhanced punishment mencement of the hearing, the provide because the State failed ishment Enhancement,” State filed a “Notice of timely it would seek en- notice that expressed which it its intent to seek precedent on that a Relying hancement. prior of a enhanced sentence under section defendant to notice is entitled 448, 501, 3. felony, 368 U.S. 82 7 446 on he shall be S.Ct. L.Ed.2d victed of a conviction (1962). felony.” punished second-degree for a Tex. 12.42(a)(3) (Vernon Supp.2004- § Penal Code 08-03-00131-CR, 327022, 4. No. 2005 WL 05). range punishment While the for a Tex.App. (Tex.App.-El 2005 LEXIS 1118 Paso third-degree years' impris- felony is two to ten 2005, 10, pet. granted). Feb. onment, second-degree felony range for twenty years. is two to See Tex Penal Code third-degree Attempted sexual is a assault 12.34(a) 12.33(a), § § and Code, felony. Under the Texas Penal it is "[i]f Penal Code Tex. respectively. third-degree felony shown ... on the trial aof that the defendant once con- has been

141 ad- being cured the cited conviction used for enhancement6 continuance of the consequence timing verse among on presumption several ad- expressly notice. The State does that days courts of ten before trial rely process argument on a vance or due notice,7 of Appeals is the Court reasonable timely. claiming that its notice was un- that the State’s notice was determined undertaking a due Similarly, rather timely. explained of Appeals The Court analysis, Appeals process the Court be the timeliness notice should of the case evaluated the circumstances prior frame measured within time from this relation to decisions Court purpose of the notice re- since holding courts of appeals lower in prepa- to aid the accused quirement was untimely. Instead was State’s ration a trial on It also for the issue. question granted focused staying reasoned that the State’s notice six discretionary for review— petition in the insufficient was there was evi- because notice of intent Appellant surprised and dence that was makes timely majority enhance was —the respect unprepared his defense with process. this federal due a case about alleged de- Having convictions. implicated in process due Although termined that the State’s notice intent involving this and others the timeli case to seek un- punishment an enhanced was enhancement, ness of the State’s notice timely, of Appeals the Court concluded not the issue raised the State harm8 suffered substantial discretionary In petition review. in the form of a sentence outside the ten- holding that the State’s notice enhance year felony for a third-degree maximum sufficient, ment relies due the enhancement. exclusively Oyler, the United almost establishing Supreme States Court ANALYSIS require does not advance review, discretionary In its petition for the substantive notice that trial argues Ap- the Court of by an will be followed accusation offense peals failing erred to consider all of is an habitual offender. the defendant particular circumstances of this case 501; 453, 82 Almen S.Ct. see U.S. in concluding that the State’s enhance- States, 523 U.S. darez-Torres United In timely. particu- ment notice 224, 244, 1219, 140 L.Ed.2d 350 118 S.Ct. lar, the that the Court of State contends (1998); Raley, Parke U.S. not take did into account the fact (1992). L.Ed.2d S.Ct. remedied Oyler, determined that regarding fingerprint-com- confusion though be satisfied even parison procedure granting give a one-week does not its notice of en the State phase until the position punishment is that hancement continuance. (Tex.Crim. (citing art. 6. Brooks v. 957 S.W.2d 30 instances TexCode Crim. Proc. Ann. (Vernon App.1997). 1.051(e) Supp.2002); TexCode Crim. 1989); 28.10(a) (Vernon Camp- Ann. art. Proc. See, e.g., Sears v. (Tex.Crim. bell v. pet.), (Tex.App.-Beaumont no in which Chimney App.1970); pre- the court of said that notice is 1999)). (Tex.App.-Waco sumptively given at least ten reasonable if trial, days because this time frame is 44.2(b). App. See Tex Rule Proc. considered sufficient in a number of other trial, as long as the rea speak defendant has a and did not to in scenarios which a opportunity to respond sonable to the re defendant contests the State’s notice of charge. cidivist 368 U.S. at 82 S.Ct. intent to seek and enhancement indicates (explaining that a re he defendant must needs more within time which to opportuni ceive “reasonable notice and an prepare, and it did not address the situa- ty to be unitary heard relative to the of a recidivist tion trial in which the same charge even if due process jury does not re decides and guilt punishment in two quire that given prior phases. notice be to separate Oyler was a in case offense.”)- on the substantive basically procedural- The defen which the defendants in Oyler had ly dants reasonable be their ability challenge notice defaulted to enhancement, cause the State informed them of inten effectively and it room left at to seek enhancement the start of in for the situation which notice before the phase, punishment they an punishment phase and had would not satisfy due opportunity they process. to be heard because ac knowledged open in they court that were role in the case Our instant is not to persons previously same who had been Appellant’s pro- determine whether due Thus, convicted. no due violation rights cess abridged, were but to decide Indeed, occurred. filing whether the State’s its notice to clear petitioners’ made failure to punishment timely. enhance was The Su- object or seek a ground continuance preme holding Oyler Court’s in they adequate had not received notice proposition stand that notice they

was the estopped reason were to it timely long intent enhance is as as asserting they later claim had not punishment proceed- received to the given been a fair to to opportunity respond majori- ing, majority suggests. as the The allegations used for Id. enhancement. ty basically dismisses the timeliness 82 S.Ct. 501. notice, saying that the State’s which surrounding Appellant’s given

The facts beginning six before the attorney “substantially are dissimilar. no- twice more objections lodged pro- to the minimally required satisfy State’s notice tice sentence, intent seek an it Majority Opinion Again, enhanced cess.” at *8. trial judge was the who continued to majority misinterprets Oyler defer confuses Furthermore, ruling Ap- this matter. process by the issues of timeliness and due pellant persisted in plea his of not if treating they true them as were one and the paragraphs. the enhancement nota- If Oyler proposition Most same. stood for the bly, Oyler apprised requirements defendants were were satisfied timeliness separate long gave the enhancements infor- as State notice at the punishment phase, after then beginning mation the conclusion trials which their sentences jurisprudence were deferred. entire would not exist. Indeed, Virginia in Oyler noteworthy Oyler West statute at issue provided the defendants separate any dealing with never been cited Texas case jury they trial on the issue of if identity with the timeliness of enhancement, being person denied light the information of the fact that its just alleging holding ap- the enhancement or remained would have been silent, our plicable beginning whereas was sentenced to this issue with jury the same decided his 1997 decision in guilt. Brooks v. which Oyler particular give entertained set of facts notice of en- allowed substituting process,10 timeliness the indictment.9 hancement outside could that precedent it has a specifi- and created majority have focused The should issue, a mo- timeliness, including every rather make notice cally question on the dimen- analysis quash, one of constitutional tion to delving into a constitutional employed by Appeals, the Court of sion. not it conflates notice and timeliness.

which cor- the Appeals applied Court of The State, 575, 577 v. Rich S.W.3d See evaluating merits of the procedures rect (explaining that since (Tex.Crim.App.2005) claims, although the it reached the Court appellant the did contest First, Ap- the wrong conclusion. application of the Appeals’ standard the notice examined whether State’s peals error, assume we nonconstitutional would timely, given the circumstances was rule). proper that it was the Second, only having after deter- case. untimely notice that was failing presented In address the issue mined Timeli- review, analysis. a harm majority oppor- did it undertake misses time the provide must be measured tunity guidance to both ness courts, notice, inten- expresses en- files its increasingly lower have State which sentence, State, tion, and it issue, as to to seek enhanced countered this and the an that the notice be seeking require constitutes timeliness in makes sense to what a trial. that message enhanced The that the before said Brooks11 sentence. We is majority sends that as as the State defendant entitled long is enhance, there is pun- files its notice of enhancement before intention to and ishment, majori- that timely. among the lower courts presumption notice is away is ty essentially days prior has done the issue reasonable.12 with ten courts, only process including majority says that due is the 9. Texas Court of Crimi- Oyler's Appeals, extensively nal have relied and it is satisfied relevant consideration equal protection holding de- given any that "the State’s time if notice enhancement prosecute may deliberately cision to not be punishment before defendant upon unjustifiable based standards such respond. If reasonable time within which to race, religion, arbitrary or other classifica- so, then the Court could have held Oyler, tion.” 368 U.S. at 82 S.Ct. 501. to a new defendant in McNatt was entitled State, also See Green S.W.2d process was satis- penalty hearing since due County (Tex.Crim.App.1996); giving by the some notice before fied state’s (Tex.Crim.App.1989); S.W.2d Satter- hearing. punishment Under (Tex.Crim. white v. us, separate opinion in case before App.1986). of no of the timeliness of notice is fact, consequence. would be Notably, we could have the recent decided prudent rehearing to ask for in McNatt (Tex. case McNatt v. 188 S.W.3d 198 hearing, punishment order to avoid another differently Crim.App.2006), ma- based on the now violation since due McNatt, jority’s court of decision here. In you can have. appeals appellant denied held that the was day punish- because on the (holding "prior con- S.W.2d at 33 11. 957 trial, State, through ment a motion for pled be used as enhancements must victions reconsideration, used a conviction form, they pled in the need not be in some but solely alleged jurisdictional aas enhancement although permissible it is indictment — in the indictment to enhance his sentence. so.”). perhaps preferable to do (Tex.App.-Texarkana 152 S.W.3d 645 granted). pet. The court also Sears, (explaining that at 455 agreed with the State's the trial enhancement, days’ notice is considered sufficient ten letter notice of sent eleven Villescas, instances, ap- including the time untimely. Here in number 144

Proper notice a “description adopted bright-line constitutes of a rule requiring ten judgment conviction days’ former that mil notice the State’s intention to en- enable find guilt phase trial,13 [the to the record and hance accused] before the oth- preparation amake for a trial of er ques- courts have considered the each facts of case, tion whether he is the convict including named how close to trial the defen- State, 873, therein.” Hollins v. 571 S.W.2d dant was informed the State’s decision 875 to (Tex.Crim.App.1978) (citing Morman seek and enhancement whether the de- State, 264, v. 127 Tex.Crim. 75 fendant expressed surprise S.W.2d 886 the need (1934)). Proper also notice affords the additional time in which to prepare. The opportunity defendant the to determine if instant case gives opportuni- prior being ty offenses correctly provide are char- guidance the lower courts State, acterized in terms of their as to how to evaluate timeliness of finality, gives substance and and it an at- State’s notice of enhancement. Because torney the opportunity different, to voir poten- every dire facts of are jurors tial on punishment issues. such is believe claims should be addressed common sense to require give evaluating totality the State to of the circum- stances, its notice of mandating bright- enhancement before the com- rather than a proceedings, especially mencement line rule.

when there is a trial. unitary totality Based on the circum case, appeals lower courts have ad- stance of this seems that the State timeliness, dressed the issue of timely providing and then- notice for First, decisions offer in evaluating following some direction reasons. the notice was Notably, claim. this jurispru- days including six four dence on timeliness has evolved in days. business and two weekend No enhancement, lower courts as a of our result decisions in tice of like notice in other Patterson, (Tex. instances, parte Ex 766 given 740 S.W.2d should be before trial Crim.App.1987), which we allowed order a timely, ten-day presump to be tion, definitive, intent to seek deadly weapon finding although provides indictment, pleaded analysis be outside of the starting point for our that must be Brooks, subsequently in in which we al- considered in relation to the other facts of Fairrow, lowed the intent to sentence 112 seek enhance- case. See 288 S.W.3d pleaded ment to be (holding outside the indict- the State’s oral admonish day ment. While the Waco ment on trial did not afford 3940, 18, 2005, pointed prepare; (Tex.App.-AmarilloMay counsel is allowed to at *4 upon given, request, time a defendant (not pet.) designated publication); no indictment; respond to an amended and the McNatt, 651; State, at Fairrow v. probationer that a time is entitled to be served 288, 2003, (Tex.App.-Dallas 112 S.W.3d revoke). awith motion to In addition to the pet.). no Worth, appeals, Beaumont court of the Fort Paso, Texarkana, Amarillo, El and Dallas (Tex. 13. See Hackett 160 S.W.3d courts of have all observed that ten 2005, ref'd) App.-Waco (holding pet. days’ presumptively notice is reasonable. State's notice of its intent to use convic See, e.g., Williams v. tions for was a de enhancement amend ref’d); (Tex.App.-Fort pet. facto Worth indictment, requiring ment of the Villescas, 08-03-00131-CR, minimum No. 2005 WL 28.10(a) *2, days’ Tex.App. of ten under Article at LEXIS at *6; 07-04-0386-CR, Procedure). Lewis No. the Texas Code of Criminal *1, Tex.App. WL LEXIS 144 State, (Tex.App. Barnes v. notice of to en proper intent defendant 2004, (holding that notice State, pet.) Dallas no Hudson v. 145 punishment); hance reasonable days trial was seven before 2004, (Tex.App.-Fort Worth S.W.3d ample he had that where defendant said d) (holding that notice unrea pet. was ref the enhance notice and true to pleaded given during guilt phase when sonable never indi paragraphs). Appellant ment days of before the punishment trial six — notice was time cated that he believed phase Fugate v. began); Cf. for ly, and he this issue review preserved S.W.3d —, 2-04-548-CR, No. 2006 WL afore appeal. on A consideration (Tex. Tex.App. LEXIS 1948 reveals mentioned circumstances 2006) App.-Fort (holding Worth timely not as measured State’s notice was days of seven State’s notice before gave it first notice and from the date that was appellant was sufficient because objected. defendant first pen had on packets aware that the State Having that the State’s no- established his convictions and could use them necessary it untimely, tice was deter- enhancement); No. Castilla mine the trial court committed 05-01-01776-CR, 2002 WL of Appeals reversible The Court error. (Tex.App.-Dallas LEXIS 7263 Tex.App. Appellate Rule of Proce- relied Texas (not Oct.10, pet.) designated no 44.2(b) conducting analy- its harm dure in publication) (holding that “am gave State that the Court sis. The asserts by filing ple ancillary pleadings notice” Appeals have used the constitu- should trial). seven analysis tional for its harm be- standard Second, objected defense counsel at both flows requirement cause the notice stage punishment stage and the guilt process due precepts fundamental trial, saying that the notice untime was Again, while and due course of law. there ly indicating that he additional needed component be a to the Sears, prepare. in time which See provide timely claim that did not the State (considering attorney’s ob enhance, Appel- notice of intention to jection in holding to the enhancement lant did such a claim. not advance On Friday given Monday notice before the appeal, Appeals considered untimely); trial began was Williams Cf. trial court the issue “whether the erred (Tex.App.-Fort 172 S.W.3d 730 allowing punishment enhanced because 'd) 2005, pet. (holding eight Worth ref timely notice provide failed days’ notice before trial was reasonable punishment.” that it to enhance would seek part based in on the absence from the Villescas, 08-03-00131-CR, 2005 No. WL any surprise prepara or lack of record *1, Tex.App. LEXIS defendant). Al part allege at *1. Since did granted though judge the trial a continu violation, the Court phase during punishment because ance correctly nonconstitutional applied the he confusion with the observed error to its harm standard for reversible procedure, re fingerprint-comparison analysis. appeals court of Fairrow the effect of transform cess did not have After approach. con- undertook a similar timely ing untimely into notice of intent to cluding that the State’s Third, Appellant timely, explained maintained his notice. enhance argued that sen- plea para appellant true to the enhancement since the of not range allowed tencing outside throughout proceedings. See graph statute, it would “conduct the harm claim analy- satisfy this will cases, of statutory sis all species errors as and it does not ‘oth- mention the 44.2(b).” particular Fairrow, er errors’ under timeliness of rule notice. Our own caselaw more S.W.3d at 295. The court instructive determining timely whether notice is declined use the constitutional standard given situation. Based on totality the 44.2(a) Rule “Appellant under because circumstances, I would have affirmed argue trial that the court’s error Appeals’ Court of decision that provision.” violated constitutional Id. On However, untimely. State’s notice was af- hand, other in the error Sears was 44.2(b) ter Rule undertaking a analysis the appellant because had Appellant’s claim, nonconstitutional I claimed that “the trial court violated his would untimely have concluded that process right due to under notice the Sixth by notice was cured the trial one- court’s and Fourteenth Amendments to the Unit- week recess. that Given ed it States Constitution when allowed the conflated in issues of timeliness and notice present to enhancement evidence an analysis unnecessarily that relies objection over [his] that he had received process due is to unresponsive inadequate notice of the State’s intent to granted petition in the State’s offer the evidence.” 91 S.W.3d at 453. review, I discretionary can in concur Therefore, appeals ap- the Sears court of its decision. 44.2(a) plied conducting Rule in its harm HERVEY, J., filed a dissenting opinion analysis. case, although the instant I KEASLER, J., joined. in which with agree the Court of I untimely, Const., I, State’s notice was § believe that Tex. provides Art. that: trial court’s to decision recess the No citizen of this State shall be deprived gave defense counsel time to prepare life, liberty, property, or privileges against immunities, for his defense any conviction or in manner disenfran- Thus, chised, used except by enhancement. whatever the due course of the law of harm as a result of the land. suffered untimely notice cured of Appeals The Tenth Court into read recess, even though granted it was not provision this specific state constitutional objection. to response defense counsel’s right, provided broader than counterpart United States CONCLUSION clause,1 process Constitution’s due instructive Although Oyler is deter- gone completely had unnoticed for over mining State, years. v. See Pena 166 S.W.3d rights were violated on the based State’s 274, 2005). (Tex.App.-Waco 278-81 This enhancement, notice the case is not Court can decides that Tenth Court conclusive as to question when no- make interpretation this under its authori timely. Oyler tice does make clear that ty “unassigned address error” but punishment phase of tri- parties without giving opportu first an al, guilt may rather than the phase, satisfy nity be heard. Court states that however, process; appellate careful to dis- courts are authorized to review State, see 1. But v. 32 S.W.3d of law and due course in state Jimenez P.J., (McCormick, (Tex.Cr.App.2000) concur- thing). constitution mean the same (due ring) clause federal constitu- (to 33.1(a)(1) preserve Tex.R.App. “a Proc. error” is defined as “unassigned which review, complaining preserved claim the trial below for appellate error appeal.” objection Pena stating but was not raised on make must party (delivered date) citing specificity sufficient grounds “with (Tex. Rezac v. of the com- make aware (once jurisdiction is Cr.App.1990) controlled case should be plaint”). This invoked, ap properly limits issues Hailey decision in our only by “are pellate court address set 118,121-22 (Tex.Cr.App.2002). re any discretion and valid court’s respectfully dissent. statute”); strictive but see Tex.R.App. PROC. 38.1(e) (requiring appellant’s brief concisely points pre

“state all issues appellate courts

sented for review” which every covering subsidiary “as

should treat included”); question fairly Tex. 47.1 court (requiring

R.App. PROC. opinion

to written that “ad hand down raised”).2 every issue dresses WELCH, Morrow Robert M.D., Appellant however, opinion, declines Court’s to claim that the state address Tenth constitutional issue decided McLEAN, Individually Simeon Eden “preserved not trial be-

Court was as to the of Delores Heir Estate Pena, (declining n. 14 “to low.” at 135 See Deceased, McLean, Eden and Simeon time”); at this address this contention see McLean, Im- Next of Jamila Friend Pena, J., (Gray, also 283-86 Zakiya Mc- (state ari McLean and Imani dissenting) not constitutional issue Lean, Minors, Appellees. court). preserved in the trial ad- would dress this claim and decide that the state No. 2-02-237-CV. constitutional claim decided the Tenth “preserved trial be- Court was Texas, Court of forth dis- low” for the reasons set in the Fort Worth. senting opinion Appeals. in the Court of June men- Though generally

See id. appellant state trial tioned the constitution

court he did not proceedings, specifically how the

indicate state constitutional law

course of differed counterpart so as inform party and the the need other id.; to this also respond claim. See see good suspend a or 2 sion for other doubtful that is also Tex.R.App. cause— Proc. authority sponte particular in a operation for the Tenth Court to sua rule’s question procedure; since address the state but a order different procedure.” suspend any a different "order must not construe this rule provides: Rule Criminal Proce- provision in the Code of perfecting an alter the time for dure party's on its initiative On a motion or own appeal case. expedite a deci- in a civil appellate court —to notes common violates appeals, appeal tion on was that the trial court judicial economy to remand it.2 sense and admitting testimony of test re- “erred the Court’s respectfully dissent from alleged marijuana sults when concerning judgment. original this file material evidence concerning this evidence had been de- Exhibit “A” stroyed or lost to trial and without considering independent testing.” IN THE OF COURT CRIMINAL claim, the court of addressed APPEALS OF TEXAS the Texas Constitution’s Due NO. PD-0531-05 of Law Course Clause afforded VILLESCAS, Appellant greater protection than the United States FRANCISCO Constitution’s Due Process Clause. majority holds that of appeals THE OF TEXAS STATE

Case Details

Case Name: Pena v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 26, 2006

Citation: 191 S.W.3d 133

Docket Number: PD-0966-05

Court Abbreviation: Tex. Crim. App.